Melissa Jo Davis v. Allstate Property & Casualty Insurance Company and Jonathan Len Anthony

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

NUMBER 2019 CA 0285
r

MELISSA JO DAVIS

VERSUS

ALLSTATE PROPERTY & CASUALTY INSURANCE COMPANY AND
JONATHAN LEN ANTHONY

Judgment Rendered: NOV 15 2019

Appealed from the

Twenty -First Judicial District Court
In and for the Parish of Tangipahoa
State of Louisiana
Docket Number 2016- 0000472

Honorable Charlotte H. Foster, Judge Presiding

William R. Mustian, III Counsel for Plaintiff/Appellant,
Metairie, LA Melissa Jo Davis

Dan Richard Dorey Counsel for Defendant/Appellee,
Covington, LA Louisiana Farm Bureau Casualty
Insurance Company

BEFORE: WHIPPLE, C.J., GUIDRY, AND CRAIN, JJ.

WHIPPLE, C.J.

Plaintiff, Melissa Jo Davis, appeals from a judgment of the trial court in

favor of defendant, Louisiana Farm Bureau Casualty Insurance Company,

dismissing her suit with prejudice. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

On November 18, 2015, at approximately 4: 05 p.m., plaintiff was backing

her 2008 Toyota Corolla out of a parking spot off of, and perpendicular to, East

Oak Street' between South Myrtle and South Bay Streets in Amite. As she backed

out, her vehicle collided with a 2013 Chevrolet Silverado truck driven by Jonathan

Anthony, who was travelling west on East Oak Street.

Plaintiff thereafter filed a petition for damages for injuries allegedly

sustained as a result of this accident against Mr. Anthony and his insurer, Allstate

Property and Casualty Insurance Company (" Allstate"). Following a settlement,

plaintiffs claims against Allstate and Mr. Anthony were dismissed with prejudice

pursuant to a joint motion and order of dismissal.2

Plaintiff also filed a supplemental petition for damages against her insurer,

Louisiana Farm Bureau Casualty Insurance Company (" Farm Bureau"), seeking

LTM benefits, contending that the policy limits from Mr. Anthony' s insurance

policy were insufficient to fully compensate plaintiff for her damages. Farm

Bureau answered the petition, averring that plaintiff' s comparative negligence,

failure to mitigate her damages, and pre- existing and/or superseding or intervening
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medical conditions precluded plaintiff from any further recovery.

The matter proceeded to trial on October 1, 2018. Following the submission

of post -trial memorandums, the trial court issued written reasons for judgment in

Oak Street also serves as Louisiana Highway 16.

2Allstate tendered plaintiff the liability policy limits of $15, 000.00.
3Farm Bureau issued plaintiff $5, 000. 00 in medical payments coverage benefits.
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favor of Farm Bureau and against plaintiff, finding that " the testimony of every

witness called at trial contained multiple inconsistencies and therefore the plaintiff

simply did not prove by a preponderance of the evidence that [ Mr. Anthony] was at

fault in causing the crash that resulted in plaintiff's damages." On November 12,

2018, the trial court signed a judgment, dismissing plaintiff' s suit against Farm

Bureau with prejudice and ordering each party to bear their own costs.

Plaintiff now appeals, contending that the trial court erred in: ( 1) finding

that plaintiff failed to prove her case by a preponderance of the evidence based

upon the court' s finding that the testimony of every witness contained multiple

inconsistencies; ( 2) failing to make credibility assessments of the witnesses at trial;

3) failing to weigh the testimony of the witnesses; and ( 4) not finding Mr.

Anthony at fault in causing the accident.

DISCUSSION

Assignments of Error Numbers One, Two, and Three

As set forth above in these assignments of error, plaintiff essentially

challenges the factual findings of the trial court as reflected in the trial court' s

reasons for judgment. Specifically, plaintiff contends the court erred in finding

that she failed to prove her case by a preponderance of evidence, and challenges

the trial court' s statement in its reasons for judgment that the testimony of every

witness contained multiple inconsistencies. Plaintiff further argues the trial court

erred in failing to make credibility assessments and weigh witnesses' testimony,

citing the absence of such in any discussion in its reasons for judgment. Plaintiff

argues that the trial court failed to reconcile any inconsistent testimony, noting that

i] n its Reasons for Judgment, the trial court did not discuss any weight or

credibility that it gave to any particular witness."

The trial court' s reasons for judgment provide, in pertinent part:

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T] he testimony of every witness called at trial contained
multiple inconsistencies and therefore plaintiff simply did not prove
by a preponderance of the evidence that Jonathan Len Anthony was at
fault in causing the crash that resulted in plaintiff' s damages.

Although plaintiff contends the trial court' s reasons for judgment are

defective for lack of specificity or detail, and evidence error by the trial court, we

note that as an appellate court, we review judgments and not reasons for judgment.

Walton v. State Farm Mutual Automobile Insurance Company, 2018- 1510 ( La.

App. 1st Cir. 5/ 31/ 1. 9), 277 So. 3d 1193, 1199. Indeed, judgments are often upheld

on appeal for reasons different than those assigned by a trial court. Wooley v.

Lucksinger, 2009- 0571 ( La. 4/ l/ 11), 61 So. 3d 507, 572. The written reasons for

judgment are merely an explication of the trial court' s determinations. They do not

alter, amend, or affect the final judgment being appealed. Walton v. State Farm

Mutual Automobile Insurance Company, 277 So. 3d at 1199. Accordingly, the job

of the appellate court is to review the trial court' s judgment, not its reasons for

judgment. Wooley v. Lucksing r, 6:1. So. 3d at 572.

We nonetheless note that to the extent that plaintiff contends that the trial

court' s reasons for judgment failed to indicate how it reconciled conflicting

testimony, or whether it reconciled conflicting testimony, a weighing of the

testimony and a determination of the credibility to be given to the witnesses'

testimony is implicit in the trial court' s ultimate ruling that plaintiff failed to prove,

by a preponderance of the evidence, that Mr. Anthony was at fault. As further set

forth in our discussion of the remaining assignment of error, the ultimate

determination of the trial court as to fault is amply supported by the record.

We find no merit to these three assignments of error.

Assignment of Error Number Four

In plaintiffs fourth assignment of error, she contends that the trial court

erred in finding that she failed to prove that Mr. Anthony was at fault in causing

the accident by a preponderance of the evidence.

A determination of fault is a factual determination. McDowell. v. Diggs,

201.7- 0755 ( La. App. l" Cir. .10/ 3/ 18), 264 So. 3d 489, 493. In order to reverse a

factual determination by the trier of fact, this court must find that a reasonable

basis does not exist for the finding and that the record establishes that the finding is

clearly erroneous. Stobart v. State, Department of Transportation and

Development, 617 So. 2d 880, 882 ( La. 1993).

Appellate courts review apportionment of fault under the manifest error -

clearly wrong standard of review. Schexnqyder v. Bridges, 2015- 0786 ( La. App.

I" Cir. 2/ 26/ 16), 190 So. 3d 764, 773. The manifest error standard demands great

deference to the fact finder' s conclusions; for only the fact finder can be aware of

the variations in demeanor and tone of voice that bear so heavily on the listener' s

understanding and belief in what is said. Pinn v. Pennison, 2016- 0614 ( La. App.

I" Cir. 12/ 22/ 18), 209 So. 3d 844, 847. Moreover, when factual findings are based

on credibility determinations the manifest error standard of review demands great

deference to the trier of fact' s findings. Rosell v. ESCO, 549 So. 2d 840, 844 ( La.

1989). Where there are two permissible views of the evidence, the fact finder' s

choice between them cannot be manifestly erroneous. Rosell v. ESCO, 549 So. 2d

at 844; McDowell v. Diggs, 264 So. 3d at 494.

A preponderance of the evidence means evidence that is of greater weight

than that which is offered in opposition thereto. Wiley v. Department of Health

and flospitals, 22015- 1984 ( La. App. I' t Cir. 9/ 16/ 16), 203 So. 3d 1085, 1088.

Proof is sufficient to constitute a preponderance when, taken as a whole, it shows

the fact of causation sought to be proved is more probable than not. Brown v.

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Department of Health and. Hospitals Eastern Louisiana Mental Health System,

2004- 2348 ( La. App. 1" Cir. 11/ 4/ 05), 917 So. 2d 522, 527, writ denied, 2006-

0178 ( La. 4/ 24/ 06), 926 So. 2d 545.

Thus, applying these precepts, our only inquiry at this stage is whether the

trial court's factual findings of fault were reasonable, regardless as to how we may

have weighed the evidence differently if we were sitting as the trier of fact. See

Pinn v. Pennison, 209 So. 3d at 848.

Plaintiff testified that at the time of the accident, she was employed as a

clerk in the property tax department of the Tangipahoa Parish Sheriff' s Office and

was leaving work for the day. She stated that she parked her car in a parking spot

in the middle of the block about eleven spaces from the stop sign so she could

see" when she backed out onto Oak Street. Plaintiff testified that she got into her

car, looked both ways, and saw that there was a car coming to the right. According

to plaintiff, she then waited for the car to pass before backing out. Plaintiff stated

that after the car cleared, she began backing out, when all of a sudden, she was hit

on the rear driver' s side of her vehicle. She testified that she was not really sure

what happened after she started to back out, and she admitted. that she never saw

Mr. Anthony' s truck prior to the accident.

Mr. Anthony testified that just before the accident, he picked up his seven-

year- old son. : from daycare on Myrtle Street, and he then. proceeded to the

intersection. of Myrtle and Oak Streets. He stated that after coming to a stop at the

stop sign, he made a left turn and proceeded west on Oak Street for about 150 feet,

when the front passenger side of his truck was struck by the rear of plaintiffs

vehicle. Mr. Anthony testified that the accident happened very quickly and that he

did not see plaintiff' s vehicle before it hit him. He stated that plaintiff backed

straight out of the parking spot and that there was nothing he could have done to

avoid the accident. Mr. Anthony stated that the rear end of plaintiffs vehicle

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struck the front passenger door of his truck behind the front passenger tire and that

there was no damage to the front center bumper of his truck. Mr. Anthony denied

that his vehicle struck the rear of plaintiff' s vehicle as it was backing out. Mr.

Anthony testified that he did not apply his brakes before the accident because he

did not see plaintiff' s vehicle before it struck him. He described it as a " sudden.

impact" from. the side as he travelled down the street.

Sergeant Eric Simmons of the Anite City Police Department was dispatched

to the scene to investigate the accident. After speaking to plaintiff and Mr.

Anthony, Sgt. Simmons concluded that a contributing factor to the accident was

plaintiff' s violation of " improper backing" and that plaintiff was " inattentive."

Sgt. Simmons testified that he noted the violation by plaintiff in his report because

motorists are supposed to look back and make sure the roadway is clear before

backing up into the roadway. The officer' s report further indicates that plaintiff' s

vehicle was at an angle when the accident occurred, however, both plaintiff and

Mr. Anthony testified that plaintiff was facing north and was backing straight out

of the parking spot when the accident occurred. Sgt. Simmons did not issue a

citation to either driver.

Sgt. Simmons testified that although he had no independent recollection of

speaking with either driver at the time of trial, he would defer to the findings set

forth in his report, which indicated that he spoke to both plaintiff and Mr. Anthony

at the scene of the accident. Plaintiff, however, denied speaking to the officer at

the scene of the accident. Also, while Sgt. Simmons recorded that Mr. Anthony

told him that the glare from the sun was in his eyes and that he did not see

plaintiffs vehicle backing out, Mr. Anthony denied making any such statement

and testified that there must have been a misunderstanding, because when Sgt.

Simmons asked him what happened, Mr. Anthony replied that he did not know,

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and. told the officer that maybe the sun was in plaintiffs eyes and she did not see

him.

Marcie Renee Chadwick, a co- worker of plaintiff, testified that she was in.

her vehicle at the intersection of Myrtle and Oak Streets just before the accident

occurred. Ms. Chadwick testified that she was at the stop sign coming from North

Myrtle Street facing Mr. Anthony' s vehicle, which was at the stop sign. coming

from South Myrtle Street. After she and Mr. Anthony turned onto Oak. Street

heading in opposite directions, she witnessed the accident in her rearview mirror.

Ms. Chadwick testified that she saw Mr. Anthony' s truck strike the rear passenger

side of plaintiff' s vehicle. She further testified that from what she could tell,

plaintiff' s vehicle was not at an angle at the time of the accident. Ms. Chadwick

testified that prior to the accident, she did not see plaintiff' s vehicle moving or

backing out. Ms. Chadwick did not stop and return to the scene of the accident

that day, but she was asked by a deputy to give a statement the following day.

Photographs of the vehicles taken after the accident and introduced at trial

show damage across the rear and on the driver' s side rear corner of plaintiff s

vehicle and to the front passenger side of Mr. Anthony' s vehicle.

After thorough review of the evidence and conflicting testimony herein, we

find the record reasonably supports the trial court' s conclusion that plaintiff's

negligence was the sole cause of the accident. Louisiana law specifically provides

that the driver of a vehicle shall not back the same unless such movement can be

made with reasonable safety and without interfering with other traffic. LSA-R.S.

32: 281. Backing an automobile is considered a dangerous maneuver, and the law

imposes a high duty of care upon the driver attempting it. Rodrigue v. Firestone

Tire & Rubber Company, 540 So. 2d 477, 479 ( La. App. 1st Cir.), writs denied, 546

So. 2d 179, 180 ( La. 1989).

As the party backing her vehicle out onto Oak Street into oncoming traffic,

plaintiff had a high duty of care to ensure she could do so without interfering with

other traffic. As the record amply demonstrates, she breached the duty of ensuring

that such a maneuver could be made with reasonable safety, where Mr. Anthony

was already traveling on Oak Street at the time. Considering the applicable law

and the evidence presented herein, we find no; error in the trial court' s finding that

plaintiff failed to establish, by a preponderance of the evidence, that Mr. Anthony

was at fault in causing the accident.

Having thoroughly reviewed th.e conflicting testimony concerning the

accident, and mindful of the great deference we must afford the trial court as fact

finder, we are unable to say that the trial court' s fault determination was manifestly

erroneous or clearly wrong. Accordingly, we find no error in the ultimate ruling of

the trial court, and no merit to plaintiff' s assignment of error concerning the

finding of fault.

CONCLUSION

For the above and foregoing reasons, the November 12, 2018 judgment of

the trial court is hereby affirmed Costs of this appeal are assessed to the

plaintiff/appellant, Melissa Jo Davis.

AFFIRMED.

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